150 UNCITRAL Digest of Case Law on the United Nations Convention on the International Sale of Goods

Article 45

(1) If the seller fails to perform any of his obligations under the contract or this
Convention, the buyer may:
(a) Exercise the rights provided in articles 46 to 52;
(b) Claim damages as provided in articles 74 to 77.
(2) The buyer is not deprived of any right he may have to claim damages by
exercising his right to other remedies.
(3) No period of grace may be granted to the seller by a court or arbitral tribunal
when the buyer resorts to a remedy for breach of contract.

INTRODUCTION buyer only where the breach is fundamental. Generally, the

1. This provision gives an overview of the remedies avail-
able to the buyer when the seller has committed a breach
by non-performance of any of its duties under the contract
or the Convention.1 In its paragraph (1) (a), the provision
simply refers to other provisions, namely articles 46-52,
which specify the conditions under which the rights pro-
vided by those provisions may be exercised. On the other
hand, article 45 (1) (b) constitutes the basis for the buyer’s
right to claim damages and as such has great practical
importance.2 As far as the amount of damages is concerned,
it is to be adjudicated according to articles 74-76. Arti-
cle 45 (2) allows the combination of the right to damages
with other remedies. Article 45 (3) limits the ability of
courts and arbitral tribunals to grant periods of grace; such
grace periods would interfere with the remedial system of
the Convention.
2. Article 45 does not enumerate the buyer’s remedies
exhaustively. The Convention provides for further remedies,
e.g., in articles 71-73 or 84 (1). Nevertheless, article 45 is
exhaustive in the sense that it preempts the buyer from
invoking remedies for breach of contract otherwise availa-
ble under the applicable domestic law, since the Convention
excludes recourse to domestic law where the Convention
provides a solution.3
reasons for the seller’s breach are irrelevant, except to the
extent the seller can claim an exemption under article 79 (5).
In particular, article 45 (1) does not require that the seller
have acted with negligence, fault or intent in order for the
buyer to claim the remedies mentioned in the provision.
4. However, if the seller’s responsibility for a remedy for
a breach depends on further conditions—in particular, on
a timely and proper notice by the buyer (see articles 38,
39, 43)—then the additional conditions must be satisfied
in order for the buyer to preserve its right to the remedy.
RIGHTS UNDER ARTICLES 46-52
5. Article 45 (1) (a) merely refers to articles 46-52.
Although all the remedies provided for in these articles
require that a breach of an obligation has occurred, the
provisions make distinctions as to the kind of breach. Thus
articles 46 (2), 49 (1) (a) and 51 (2) require a fundamental
breach. Article 49 (1) (b) applies only in case of non-
delivery, and it is doubtful whether article 50 applies to
cases other than delivery of non-conforming goods. Article
51 addresses partial non-performance; article 52 deals with
early delivery and excess delivery.

NON-PERFORMANCE OF AN OBLIGATION AS A
PREREQUISITE FOR REMEDIES
3. The availability of any remedy to the buyer presup-
poses that the seller has failed to perform an obligation
deriving either from the contract, from trade usages, from
practices between the parties or from the Convention. Even
if an additional duty not specifically addressed in the Con-
vention—for instance, the duty to extend a bank guaranty
in favour of the buyer4—has been breached, the buyer is
entitled to the remedies available under the Convention.
The extent of the seller’s failure to perform is irrelevant
for the purposes of deciding whether the buyer is entitled
to remedies. Of course, some remedies are available to the
CLAIM OF DAMAGES
6. Article 45 (1) (b) lays down the substantive conditions
for a claim to damages by the buyer.5 In case of breach of
a contractual obligation of any sort by the seller, the buyer
who has suffered loss as a result of that breach can claim
damages. Thus, for example, the buyer can claim damages
for losses caused by the delivery of defective goods.6 A buyer
can also claim damages for an ensuing loss when the seller
declares in advance that it will be unable to deliver on time,
thereby committing an anticipatory breach of contract in the
sense of article 71.7 However, if the contract or the Conven-
tion imposes further conditions on the buyer’s entitlement to
damages—such as the requirement of notice under articles
38, 39, and 43—these conditions must also be satisfied.8
 Part three. Sale of goods 151

7. In contrast to many national systems, the right to claim
damages under the Convention does not depend on any
kind of fault, breach of express promise, or the like; it
presupposes merely an objective failure of performance.9
Only under the conditions described in article 79 or in a
case falling within article 80 is the seller exempted from
liability for damages.10
8. Articles 74-77 to which article 45 (1) (b) refers provide
rules for the calculation of the amount of damages, but those
provisions do not form a basis for a claim of damages.11
for performance when the buyer holds the seller liable for
a breach of contract.16 Although this possibility could be
regarded as a matter of procedural law and therefore out-
side the Convention’s scope of application, article 45 (3)
nevertheless explicitly excludes it. The provision is
addressed to courts and arbitral tribunals. The parties them-
selves are free to extend or otherwise modify the period
for performance at any time.
FURTHER QUESTIONS

9. The decisions that have applied article 45 (1) (b) evi-
dence no difficulty with the application of this provision
as such.12 Problems may arise as to the existence and extent
of an obligation of the seller or to the amount of damages,
but since both aspects are dealt with by other provisions
(articles 30-44 and 74-77 respectively), article 45 (1) (b)
is merely referred to in these cases, without being discussed
in detail.13
CUMULATION OF REMEDIES (45 (2))
10. The right to claim damages is the remedy that is
always available to the buyer if a breach of contract has
caused the buyer any damage. This right can be invoked
along with any other remedy in order to compensate for
losses that occur despite the other remedy.14 The amount of
damages, however, depends on the other remedy to which
the buyer has resorted.15
NO GRACE PERIODS (45 (3))
11. Article 45 (3) limits the ability of courts and arbitral
tribunals to grant a period of grace and to extend the time
12. The place of performance for all rights and claims
under article 45 follows the place of performance of the
primary obligation—to deliver, to hand over documents,
et cetera—which has been breached.17 Therefore it is
important to determine the place of performance of the
primary obligation.
13. The Convention does not deal with the statute of limi-
tations.18 The prescription period applicable to the rights
and claims provided for in article 45 must thus be deter-
mined by reference to the applicable national law or—
where it governs—to the United Nations Convention on the
Limitation Period in the International Sale of Goods.
BURDEN OF PROOF
14. Because the other parts of article 45 do not grant con-
crete rights on the basis of which the buyer can sue, the
question of the burden of proof under the provision is only
relevant for a claim to damages under article 45 (1) (b). For
damage claims the burden is on the buyer, who must prove
a breach of an obligation by the seller as well as the losses
caused by that breach. According to article 79, the burden
is on the seller to prove any exempting circumstances.19

Notes
1
See Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April
1980 (United Nations publication, Sales No. E.81.IV.3), 37 (“index to the remedies available to the buyer”).
2
See, e.g., CLOUT case No. 85 [Federal District Court, Northern District of New York, United States, 9 September 1994] (appellate
decision: CLOUT case No. 138 [Federal Court of Appeals for the Second Circuit, United States, 6 December 1993, 3 March 1995]);
CLOUT case No. 140 [Arbitration-Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce
and Industry award No. 155/1994 of 16 March 1995]; CRCICA Arbitration Cairo, Egypt, 3 October 1995, Unilex; CLOUT case No. 166
[Arbitration—Schiedsgericht der Handelskammer Hamburg, 21 March, 21 June 1996] (see full text of the decision); ICC Court of Arbi-
tration, France, award No. 8247, ICC International Court of Arbitration Bulletin, 2000, 53; CLOUT case No. 236 [Bundesgerichtshof,
Germany, 23 July 1997]; CLOUT case No. 248 [Schweizerisches Bundesgericht, Switzerland, 28 October 1998] (see full text of the
decision). See also the Digest for art. 74, para 9.
3
Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc., United States, 10 May 2002, available on the Internet at http://www.cisg.
law.pace.edu/cisg/wais/db/cases2/020510u1.html.
4
See CRCICA Arbitration Cairo, Egypt, 3 October 1995, Unilex.
5
A parallel provision, article 61 (1) (b), entitles the seller to claim damages for any breach of contract by the buyer.
6
See for example CLOUT case No. 125 [Oberlandesgericht Hamm, Germany, 9 June 1995] (seller who had delivered and installed
defective windows was held liable to compensate buyer’s costs of replacing the defective windows).
7
ICC Court of Arbitration, award No. 8786, January 1997 ICC International Court of Arbitration Bulletin, 2000, 70.
8
See, e.g., ICC Court of Arbitration, France, award No. 8247, ICC International Court of Arbitration Bulletin 2000, 53; CLOUT case
No. 364 [Landgericht Köln, Germany, 30 November 1999]; see also Official Records of the United Nations Conference on Contracts
for the International Sale of Goods, Vienna, 10 March-11 April 1980 (United Nations publication, Sales No. E.81.IV.3), 34-36.
9
See Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April
1980 (United Nations publication, Sales No. E.81.IV.3), 37.
152 UNCITRAL Digest of Case Law on the United Nations Convention on the International Sale of Goods

10
For an instance in which the article 79 exemption was found not inapplicable, see CLOUT case No. 140 [Arbitration-Tribunal of
International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, award No. 155/1994 of 16 March
1995].
11
See Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April
1980 (United Nations publication, Sales No. E.81.IV.3), 37. See also the Digest for art. 74, para 9.
12
See, e.g., the decisions cited above in footnote 2.
13
See as examples: CLOUT case No. 82 [Oberlandesgericht Düsseldorf, Germany, 10 February 1994] (see full text of the decision);
CLOUT case No. 83 [Oberlandesgericht München, Germany, 2 March 1994] (see full text of the decision); CLOUT case No. 168
[Oberlandesgericht Köln, Germany, 21 March 1996] (see full text of the decision); ICC Court of Arbitration, France, award No. 8247, ICC
International Court of Arbitration Bulletin, 2000, 53; CLOUT case No. 214 [Handelsgericht des Kantons Zürich, Switzerland, 5 February
1997]; CLOUT case No. 219 [Tribunal Cantonal Valais, Switzerland, 28 October 1997], also in Unilex; CLOUT case No. 293 [Arbitra-
tion—Schiedsgericht der Hamburger freundschatlichen Arbitrage, 29 December 1998]; CLOUT case No. 348 [Oberlandesgericht Hamburg,
Germany, 26 November 1999].
14
See the Digest for article 46, para. 9.
15
See the Digests for articles 74-76.
16
Granting such grace periods is possible, e.g., under art. 1184 para. 3 and art. 1244 of the French Code civil and in legal systems
which have been influenced by the French civil code.
17
Bundesgerichtshof, Germany, 11 December 1996; CLOUT case No. 268 [Bundesgerichtshof, Germany, 11 December 1996]; Gerechts-
hof ’s-Hertogenbosch, Netherlands, 9 October 1995, Unilex; Cour d’appel de Paris, France, 4 March 1998; CLOUT case No. 244 [Cour
d’appel, Paris, France, 4 March 1998]; CLOUT case No. 245 [Cour d’appel, Paris, France, 18 March 1998].
18
See the Digest for article 4, para. 13.
19
See the Digest for article 79, para. 20.